Planning Act 2008: Guidance on the decision-making stage of an application

1. The purpose of this guidance

1.1 This National Infrastructure Planning Guidance (“guidance”) sets out the process, statutory requirements and non-statutory expectations during the decision-making stage for Nationally Significant Infrastructure Projects (NSIP). It aims to explain and clarify:

• the process involved in the granting or refusing of applications for development consent
• the process to be followed in the event of an extension at decision-making stage;
• the judicial review process for NSIPs
• the process to be followed in the event of re-determination of applications

1.2 This guidance should be read in conjunction with the Introduction to National Infrastructure Planning Guidance, which includes information about audience, legal status and territorial extent of the full guidance suite.

2. The decision-making process 

The role of the Secretary of State 

2.1 It is for the relevant Secretary of State, in accordance with Part 6 Chapter 5 of the Planning Act 2008 (“the Planning Act”), to decide an application for development consent within three months of receipt of the recommendation report from the Examining Authority. However, this deadline can be extended by the Secretary of State by way of a statement to Parliament announcing the new deadline under section 107(7) of the Planning Act, usually in the form of a Written Ministerial Statement. The detailed process to be followed upon an extension at decision-making stage is laid out further below.

2.2 More information about the role of the Examining Authority and guidance on the examination process is detailed in the new examination guidance.

2.3 The relevant Secretary of State for decision-making for the different types of NSIP is set out below:

Secretary of State	Infrastructure Sectors
Secretary of State for Transport	- Transport (including road, rail, rail freight, airports and ports)
Secretary of State for Energy Security and Net Zero	- Energy: generating stations (including offshore and onshore wind, nuclear, solar, carbon capture and storage enabled power stations, energy from waste and fusion), electric lines, pipelines and underground gas storage
Secretary of State for Environment, Food and Rural Affairs	- Water resources - Waste water
Secretary of State for Housing, Communities and Local Government	- Hazardous waste - Business and commercial

2.4 Project-specific matters may mean that a decision is taken differently to that in the table. For example, where projects combine multiple NSIP elements which would otherwise be consented by different departments, departments may (on a case-by-case basis):

• agree to a single Secretary of State acting as decision-maker
• agree to a lead Secretary of State where the other department is consulted, or
• agree to a joint decision by two or more Secretaries of State

2.5 The relevant Secretary of State holds a quasi-judicial role in determining Development Consent Order (DCO) applications, with their decision taken in accordance with the legal and policy framework as set out in the Planning Act, associated secondary legislation, statutory/non-statutory guidance and supporting policy. The Secretary of State follows the key principles set out in the Planning Propriety Guidance. This means that each decision must be based only on material planning considerations, must be approached with an open mind, must be (and be seen to be) fair and unbiased, and conflicts of interest or any appearance of impropriety should be avoided.

2.6 Under the Planning Act, provision is made both for decisions in cases where a National Policy Statement (NPS) has effect for the application, and decisions in cases where no NPS has effect, depending on the type of development applied for. If a NPS has effect, then the Secretary of State must decide the application in accordance with such NPS under section 104 of the Planning Act, subject to exceptions set out in section 104(4) to (8) of the Planning Act. The Secretary of State must also have regard to any appropriate marine policy documents (determined in accordance with section 59 of the Marine and Coastal Access Act 2009). If no NPS has effect, the decision is made under section 105 of the Planning Act.

2.7 In both cases, the Secretary of State must have regard to any other matters that they think are both important and relevant. Potentially important and relevant matters may include, but are not limited to:

• NPSs that do not have effect for the proposed development but that may nevertheless be considered relevant
• relevant draft NPS if a review or update is in progress
• relevant local development plans and policies
• the National Planning Policy Framework and/or Planning Policy Wales (applicable in Wales)
• Planning Practice Guidance and/or Technical Advice Notes (applicable in Wales)
• government policies
• strategic development strategies
• relevant Written Ministerial Statements

2.8 Whether decided under section 104 or 105 of the Planning Act, the Secretary of State must also have regard to any local impact report, as well as any matters which are prescribed in relation to the type of development to which the application relates (including those prescribed in the Infrastructure Planning (Decisions) Regulations 2010). In the case of proposed Environmental Impact Assessment (EIA) development (defined in Regulation 3(1) of the Infrastructure Planning (EIA) Regulations 2017 (“the EIA Regulations”), the Secretary of State must also have regard to the EIA Regulations.

2.9 For all applications made on or after the 2 November 2026, the Secretary of State will not grant consent unless satisfied that the biodiversity gain objective has been met, as set out in the relevant biodiversity gain statement. The Secretary of State can consider the biodiversity gain objective as met if there are requirements securing this in the DCO.

2.10 In practice, the application documents and recommendation report, including the final version of the draft DCO (submitted to the examination by the applicant and revised by the Examining Authority), are considered in detail by officials in the decision-making department of the relevant Secretary of State. Officials provide advice and a recommendation for decision-making. The decision may be delegated to another departmental Minister to take on behalf of the Secretary of State.

2.11 Under section 114 of the Planning Act, when an application has been decided the Secretary of State must either make an order granting development consent or refuse development consent. Section 116 of the Planning Act requires that the Secretary of State must provide a statement of reasons for their decision. Officials in the decision-making department prepare this statement of reasons (commonly in the form of a decision letter) which will primarily focus on areas where the Secretary of State has reached a different conclusion to the Examining Authority and address matters on which the Secretary of State has sought further information. The statement of reasons does not need to repeat the full contents of the Examining Authority’s recommendation report.

2.12 Where required under the Conservation of Habitats and Species Regulations 2017 and, where applicable, the Conservation of Offshore Marine Habitats and Species Regulations 2017, collectively referred to as the “Habitats Regulations”, a Habitats Regulations Assessment (HRA) will be undertaken. For DCO applications, the relevant Secretary of State is the competent authority for the Habitats Regulations.

2.13 In practice, the Examining Authority, supported by the Planning Inspectorate’s Environmental Services Team, monitors the development of information relevant to the Habitats Regulations throughout the examination. During this process, questions may be raised by the Examining Authority to clarify matters, progress outstanding issues towards resolution where possible and ensure that the Secretary of State has enough information to inform their HRA. This information, together with the Report to Inform Appropriate Assessment / Applicant’s Habitats Regulations Report (sometimes termed a shadow HRA) submitted by the applicant and representations from other interested parties, inform the Habitats Regulations section of the recommendation report.

2.14 Following the close of examination and during the recommendation stage, the Planning Inspectorate’s Environmental Services Team, on behalf of the relevant Secretary of State, also undertakes consultation to ensure that the appropriate nature conservation body or bodies have been formally consulted under regulation 63(3) of the Habitats Regulations and, where applicable, regulation 28(4) of the Offshore Habitats Regulations. Any representations received are sent alongside the recommendation report to the decision-making department. Officials within the decision-making department then undertake a HRA which will be provided to the relevant Secretary of State for consideration in decision-making.

2.15 Where required under the Marine and Coastal Access Act 2009, a Marine Conservation Zone Assessment will be undertaken. If the DCO application includes a Deemed Marine Licence, the Secretary of State is the appropriate authority for Marine Conservation Zone Assessments. Under the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, the Secretary of State is the appropriate authority for a Water Framework Directive Assessment and must consider the ability of the UK to comply, including, if applicable, derogation provisions, when determining a DCO application.

2.16 In practice, the Examining Authority monitors the development of the above matters, asks questions to clarify matters and support progress towards resolution, seeks to ensure the Secretary of State has sufficient information on the above matters to support decision-making and reports on this as part of the recommendation report.

Unresolved matters on close of examination

2.17 A key principle of the NSIP planning process is that issues are front-loaded in the pre-application stage. This should mean that most issues are identified and, where possible, resolved at early stages of the process before examination.  All parties should avoid raising new matters during examination, as this has potential to delay the overall process. If new matters, which are material to the decision, have unavoidably arisen late in examination, the Examining Authority will need to take a considered judgement about how to manage this, in line with the legal and policy framework. The Examining Authority may (in exceptional circumstances) request the Secretary of State to extend the deadline for the examination or the report writing stage (as appropriate), under section 98(4) of the Planning Act. An extension should only be requested to enable the Examining Authority to complete the examination by examining the relevant late arising matters and then make their recommendation report. This should avoid the decision-making department needing to request extensive further information to resolve late arising matters. Extensions to statutory deadlines at the examination stage should be a last resort and only in exceptional circumstances.

2.18 Whilst most decisions are taken within the three months prescribed by section 107 of the Planning Act, sometimes a decision takes longer. There is often a significant amount of information to consider. In addition, every DCO made to date has been in the form of a statutory instrument, which must be thoroughly scrutinised by the decision-making department’s legal team to ensure consistency with best practice in drafting statutory instruments, clarity of drafting and effective legal operation of the provisions. If there are also outstanding issues with the application about which the Examining Authority has been unable to reach a conclusion, meeting the statutory deadline of three months may be challenging.

2.19 To ensure the decision-making department is able to reach a robust recommendation, advise the Secretary of State or delegated Minister, provide sufficient time for the Secretary of State or delegated Minister to make a decision and issue a decision within three months, it is essential that the recommendation report submitted by the Examining Authority is clear, comprehensive and unambiguous. The requirements of sections 74 and 83 of the Planning Act and Rule 19 of the Infrastructure Planning (Examination Procedure) Rules 2010 (“the EPR 2010”) are that the recommendation report must include the Examining Authority’s findings and conclusions in respect of the application and its recommendation as to the decision to be made on the application.

2.20 Where there are unavoidable outstanding matters, these must be clearly signalled in one outstanding matters list in the Examining Authority’s report. This will ensure the appropriate action can be taken as quickly as possible upon receipt of the Examining Authority’s report by the decision-making department. The expectation is that there will be no outstanding and unresolved matters which require the decision-making department to request further information during the decision-making stage. Where this does occur, it should only require targeted requests for further information from the applicant and/or interested parties on specific, limited matters. In this case, the Examining Authority should set out specific questions and clearly signpost the Secretary of State to relevant documents from the examination.

2.21 The Planning Inspectorate is trialling new approaches to explore how outstanding matters can be signalled earlier to enable decision-making departments to resource projects appropriately, undertake preliminary reading and act as quickly as possible once they receive the Examining Authority’s report.

Requests for further information during the decision-making stage

2.22 In practical terms, any requests for further information are produced by the relevant decision-making department. These are then sent by the Planning Inspectorate, on behalf of the Secretary of State, to the appropriate parties and published on the project pages on the “Find a National Infrastructure Project”. The responses are also published on the project pages. Other than the administrative publishing role, neither the Planning Inspectorate nor the Examining Authority has any role in the handling of additional information sought by the decision-making department or other representations received during the decision-making stage.

2.23 Requests for information during the decision-making stage are made at the discretion of the Secretary of State. The Secretary of State is required under Rule 19 of the EPR 2010 to notify all interested parties if it is disposed to disagree with the Examining Authority’s recommendation because it differs from the Examining Authority on any matter of fact mentioned in, or appearing to be material to, a conclusion reached by the Examining Authority, or because the Secretary of State takes into consideration any new evidence or any new matter of fact. The Secretary of State will set out the reasons for disagreement with the Examining Authority and will give interested parties the opportunity to make representations in writing, in respect of any new evidence or new matter of fact, by an appropriate and reasonable deadline.

2.24 Rule 19 of the EPR 2010 relates to differences on any matter of fact or consideration of any new evidence or matters of fact, not interpretation of policy or issues at the discretion of the decision-maker. The Secretary of State may reach different conclusions relating to policy interpretation and the planning balance to those reached by the Examining Authority, without having to give interested parties the opportunity to comment, (subject to Rule 19).

2.25 If, following a request for information, the Secretary of State is in receipt of additional environmental information, then according to the EIA Regulations the Secretary of State must consult interested parties on the additional environmental information. Regulation 15 of the EIA Regulations does not make explicit the length of this consultation at the decision-making stage, however the Secretary of State typically allows for 30 days, in line with Regulation 20 of the EIA Regulations which sets a minimum timeframe for consultation on additional environmental information received during the examination stage.

Extensions of statutory decision deadlines

2.26 Extensions of statutory deadlines at the decision-making stage should only be made in exceptional circumstances. If the Secretary of State considers that the statutory deadline should be extended, they must make, under section 107(7) of the Planning Act, a statement to the House of Parliament announcing the new deadline.

2.27 In practice, the Secretary of State usually issues a Written Ministerial Statement to the House of which they are a member, which is also issued to the other House by a member of parliament in the decision-making department. The project page on the “Find a National Infrastructure Project” website is updated accordingly and the Written Ministerial Statement is linked there.

2.28 In many cases the Secretary of State will have extended the statutory deadline to allow for gathering of further information, either as suggested by the Examining Authority, determined by officials in the decision-making department or because of other considerations.

2.29 Where the statutory deadline is being extended, the Secretary of State might consider, rather than issuing a request for information, issuing a ‘minded to’ letter. Such a letter would set out whether the Secretary of State is minded to grant or refuse consent for the application, without prejudice to the Secretary of State’s final decision. The ‘minded to’ letter could be published alongside the Examining Authority’s recommendation report, enabling the applicant and/or interested parties to respond more effectively with the appropriate information for the Secretary of State to consider in making a final decision.

2.30 A ‘minded to’ letter might be used in preference to a request for information when there are broad issues outstanding with the application, which require extensive additional information. In such cases, publication of the Examining Authority’s recommendation report would help to ensure the appropriate additional information is provided to the Secretary of State to enable a decision to be made. A ‘minded to’ letter would be more detailed than a request for information and would clearly lay out the key areas where the Secretary of State requires more information.

2.31 It is up to the discretion of the Secretary of State to decide whether to issue a request for information or a ‘minded to’ letter. It is also up to the Secretary of State to determine whether to issue a minded to grant or minded to refuse letter, dependent on their initial assessment of the planning balance, without prejudice to the Secretary of State’s final decision.

The process upon decision  

2.32 Section 116 of the Planning Act requires that the Secretary of State must:

• prepare a statement of reasons for deciding to grant or refuse development consent
• provide a copy of the statement to each interested party
• publish the statement as the Secretary of State thinks appropriate

2.33 In the case of EIA development, which is nearly always the case with NSIP proposals, Regulations 30 and 31 of the EIA Regulations also require the Secretary of State to:

• notify the applicant of the decision (including certain prescribed information)
• publish the statement of reasons, including, if the application is approved, reasoned conclusions on the significant effects of the development on the environment
• provide a copy to each interested party
• notify consultation bodies in writing

2.34 If the DCO has been made, section 117 of the Planning Act provides that the DCO must be published in such manner as the Secretary of State thinks appropriate and that it must be deposited with the Clerks of the Parliament.

2.35 In practice, the following will be published on the project pages of the “Find a National Infrastructure Project” website:

• the statement of reasons
• the DCO (if consent is granted)
• the HRA (if required)
• the Marine Conservation Zone Assessment (if required)
• the Examining Authority’s recommendation report
• a Regulation 31 notice of a decision on EIA development (if required)
• any post examination submissions which had not already been published

2.36 For NSIPs situated in Wales, the statement of reasons should be translated into Welsh and the Welsh translation published alongside the above documents as soon as possible.

Rights of entry 

2.37 Section 53 of the Planning Act provides for a right of entry to any land which may be exercised post-decision, where a DCO includes provision authorising the compulsory acquisition of the land or an interest in it or right over it. The right of entry may also be exercised by applicants and proposed applicants for development consent (see pre-application guidance). Section 53 of the Planning Act provides for an authorised person to enter land at any reasonable time. The authorised person must be authorised in writing by either a person with a DCO including provision for compulsory acquisition of the land or an interest in it or right over it or an applicant/proposed applicant for development consent.

2.38. An authorised person may enter the land for the purpose of surveying and taking levels of it, or in order to facilitate compliance with the provisions mentioned in section 53(1A) of the Planning Act. The authorised person may not demand admission as of right to the land unless 14 days’ notice (including prescribed information) of the intended entry has been given to every owner or occupier of the relevant land. Anyone seeking to exercise the right of entry under section 53 of the Planning Act is encouraged to engage with every affected owner or occupier in relation to any proposed entry to land, in a manner consistent with the approach set out in pre-application guidance. Further information on securing entry to land, including engagement with owners and occupiers of the relevant land, is provided in Part 1: Pre-application steps. 

3. Legal challenges relating to applications for Development Consent Orders  

3.1 Section 118 of the Planning Act sets out the elements of the NSIP process where a claim for judicial review may be brought. Such claims typically challenge the grant or refusal of development consent, but may also challenge other aspects of the process, including anything else done, or omitted to be done, by the Secretary of State in relation to an application. A claim for judicial review must be made during a period of six weeks (precise details of the challenge window for each type of proceedings is set out in section 118 of the Planning Act). A person who thinks they may have grounds for bringing a challenge may wish to seek independent legal advice before taking any action. Prior to commencing judicial review proceedings, it is expected that any potential claimant will follow the Pre-Action Protocol for Judicial Review.

3.2 The Planning and Infrastructure Act 2025 (“the PIA 2025”) made provision to streamline the judicial review process for NSIPs. This means that claims seeking permission for judicial review will proceed straight to an oral permission hearing, rather than first being considered through a paper permission stage. The PIA 2025 also removed the right to appeal a refusal of permission to bring judicial review to the Court of Appeal where the claim has been certified as ‘totally without merit’. Where an application for permission is not found to be ‘totally without merit’, applicants are still able to seek to appeal a refusal of permission in the Court of Appeal. The Civil Procedure Rules 1998 have also been amended to reflect the need to deal with NSIP challenges expeditiously.

4. Redetermination of quashed Secretary of State decisions  

4.1 Following a judicial review, if the decision of the Secretary of State is quashed in proceedings before any court, the Secretary of State is required (under Rule 20(2) of the EPR 2010) to:

• send all interested parties a written statement of the matters with respect to which further representations are invited, and
• give all interested parties the opportunity of making representations in writing to the Secretary of State in respect of those matters

4.2 In practice (and dependent on any court judgment), the Secretary of State may provide the applicant the first opportunity to make representations on these matters, which will be published on the “Find a National Infrastructure Project” website. The Secretary of State will then invite all interested parties to provide written comments on the applicant’s response and on all other matters, and these will similarly be published. The Secretary of State will provide appropriate and reasonable deadlines both for the receipt of applicant’s comments and interested parties’ comments. If the Secretary of State then decides that further information is required, they can issue further requests for information, as in the original decision-making stage.

4.3 In re-determining the application, the Secretary of State may consider the following:

• any relevant responses received to the statement of matters and any subsequent responses to further requests for information
• previous material sent to the Planning Inspectorate and the Secretary of State prior to the Secretary of State’s original decision on the application and published on the “Find a National Infrastructure Project” website, including the Examining Authority’s report

4.4 During re-determination, the Secretary of State will address the specific legal failings identified within the court’s judgment leading to the quashing order and any other relevant matters that arise from the re-determination. The procedure following a quashing order will depend on the nature of the legal error(s), and the point in the process where the legal error occurred.

4.5 There is no statutory timeframe for the Secretary of State to re-determine the application, however the expectation is that, upon receipt of necessary information as above, the Secretary of State will normally re-determine the application within 3 months, as for the original decision.